An employer may require a newly hired employee to serve a period of probation before the confirmation of the employee’s appointment. The purpose of probation is to establish whether or not the appointee’s performance is of an acceptable standard before permanently employing the employee. Probation is for newly appointed employees only.

A probationary period should be reasonable and its length will depend on the nature of the job. Generally, the more complex the nature of the job, the longer the probation period will be and the simpler the job the shorter the probation period will be. The probation period must be stated in writing and the expectations of it must be clearly communicated and understood by the employee at the commencement of employment, not during the course of employment.

The probationary period may be extended, within reason, where the employer is not satisfied with the appointee’s performance to the set standard. This should be communicated in writing. The purpose of the extension is to give the employee some more time to improve on the identified shortcomings. 

Dismissal on grounds other than performance

If the circumstances call for an employee to be dismissed, the normal procedure and substantive requirements should be applied. Situations that may require dismissal include misconduct, incapacity due to ill health/injury or retrenchment. If a probationary employee is accused of theft, a disciplinary hearing is necessary. Where retrenchment has become necessary, a consultation process should be followed before the retrenchment. 

A probationary employee cannot be dismissed for reasons that are automatically unfair e.g. participation in a lawful strike. A probationary clause cannot be relied upon for dismissing a probationary employee on operational requirements. Probation identifies performance problems before permanent employment is confirmed and to reasonably address these problems in various ways.

Poor performance procedures

The performance of an employee is assessed during probation. Where the probationary employee fails to meet the set standard or displays conduct that undermines the ethos of the company, they should be informed of such shortcomings. Employer should evaluate the employee and provide them with feedback. The employer should provide reasonable evaluation, instruction, training, guidance or counselling required for the employee to render satisfactory work.

Where there are issues in spite of the provision of the above, the employer may follow the incapacity procedures. There is no need for a formal inquiry and the rules of natural justice will be applicable. Once all the considerations and representations have made may the employee be dismissed or probation terminate. The outcome should be in writing and where the period was extended, employer must set out clear performance standards to be met by the employee.

Substantive fairness

This means that there must fair reasons for the dismissal or termination of probation period. The employer does not need extensive reasons for dismissal as they would for a permanent employee. The Code of Good Practice for Poor Performance: Incapacity, does not apply to probationary employees. 

Dispute resolution

An employee may refer an unfair labour practice dispute concerning an act or omission relating to probation to the CCMA or a Bargaining Council within 90 days of the act or omission. Where a probationary employee has been dismissed, the dispute may be referred to the CCMA or a Bargaining Council within 30 days of the date of dismissal or date of outcome of an appeal hearing (where applicable). Unfair labour practice or unfair dismissal disputes relating to probation are scheduled for compulsory con-arbitration hearings.

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